Count the overnights. “Legal” custody or decision-making power does not matter. Child Support is only payable to the parent with the children the majority of the overnights. If overnights are equally shared, the parent with the higher income is deemed to be the noncustodial parent for C.S.S.A. purposes.

Such is the rule of law made clear in two recent Appellate Division cases. In its June 28, 2013 decision in Leonard v. Leonard, the Fourth Department held that despite  the father having sole legal custody, as parenting time was equally shared and the father had the higher income, the father would be deemed the noncustodial parent and obligated to pay child support.

In Rubin v. Della Salla, an April 18, 2013 decision of the First Department, where each parent had spheres of decision-making, it was held that the father with whom the child spent 56% of the overnights could not, as a matter of law, be ordered to pay child support under the C.S.S.A.

In Leonard, upheld the decision of Monroe County Supreme Court J.H.O. to award the husband sole legal custody. The wife sought joint legal custody, bu the Fourth Department agreed that the parents’ acrimonious relationship and inability to communicate effectively with respect to the needs and activities of the children made joint custody not feasible. Moreover, the J.H.O. did not abuse his discretion in failing to split decision-making “zones of influence.”

The Fourth Department, however, held that it was error for the J.H.O. to award child support to the husband. Child support should have been awarded to the wife. As the residency arrangement was shared, and neither parent had the children for a majority of the time, the party with the higher income was to be deemed to be the noncustodial parent for purposes of child support.

Here, the residency schedule affords the parties equal time with the children. Inasmuch as the husband’s income exceeded that of the wife (at the time of trial, the husband earning $134,924.48 annually, with the J.H.O. imputing income of $25,000 to the wife), the husband was the “noncustodial” parent. As such, he must pay child support to the wife.

The Fourth Department acknowledged that the authority presented by the wife involved awards of joint legal custody, whereas the husband, here, was awarded sole legal custody. That fact, however, should not affect the child support determination.

Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children.

It was noted that there is already a significant disparity in the parties’ incomes, and an award of child support to the husband would only widen that gulf. In our view, the children’s standard of living should not vary so drastically from one parent’s house to the other. An award of child support to the wife will best assure that the children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household.

In Rubin v. Della Salla, the First Department, was asked to decide whether a parent who has primary physical custody of a child in an unequally-shared arrangement can be ordered to pay child support to the other parent. The appellate court concluded that based on the plain language of the Child Support Standards Act, its legislative history, and its interpretation by the Court of Appeals in Bast v. Rossoff, a custodial parent who has the child a majority of the time cannot be directed to pay child support to a noncustodial parent.

In Rubin, the parties were the never-married parents of a 9-year-old son. They met in the early 1990s, became romantically involved in 1998, and in November 2003, the mother gave birth to the couple’s son. After the child was born, the mother and father continued to live separately. The parties’ relationship ended in 2007. At that time, the child lived with his mother. In the beginning of 2007, the father met his current girlfriend, and by that fall, they were in a committed relationship. The time the father spent with his son progressively increased after he began his relationship with his new girlfriend. In November 2008, the father and his girlfriend moved together into an apartment, where the child was provided his own bedroom. At about the same time, school officials informed the father that the mother was habitually late in getting the child to school. The father proposed that he take the child to school every day, and the mother agreed. Each morning thereafter, except when traveling on business, the father would pick his son up from the mother’s apartment and timely transport him to school. During the 2008-2009 school year, the child spent most weekends with his father, as well as Thanksgiving, Christmas and nine days of his spring break. The father told the child that he and his girlfriend were expecting a baby, and their daughter was born in April 2009. After the daughter was born, the father significantly decreased his work travel and was available to spend more time with his son.

In April 2009, the mother commenced this action seeking sole legal and residential custody of the child, and an order compelling the father to pay child support. The father also sought primary custody of the child.

After a ten-day trial, New York County Supreme Court Justice Ellen Gesmer awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each midwinter school break, and the other school breaks were evenly divided. In addition, each parent was given two weeks with the child during the summer. M.R. v A.D., 32 Misc. 3d 512, 513, 928 N.Y.S.2d 429 (N.Y. Sup. Ct. 2011).

Justice Gesmer awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion. (The First Department, as part of the current decision, affirmed this arrangement.)

Following the custody decision, the father moved for summary judgment dismissing the mother’s cause of action for child support. The father argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. The child would be with the father 56% of the time and with the mother 44% of the time. Thus, the father argued, as a matter of law, that the court could not order him to pay child support to the mother, the noncustodial parent.

Justice Gesmer denied the father’s summary judgment motion, finding that an award of child support to the mother was not precluded. M.R. v A.D., 35 Misc. 3d 619, 940 N.Y.S.2d 808 (N.Y. Sup. Ct. 2012). Justice Gesmer reasoned that because the parties had “parallel legal custody” of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father was the custodial parent for child support purposes. The court also focused on the disparity between the parents’ financial circumstances and concluded that, regardless of whether the father was the custodial parent, it had the discretion to award the mother child support because she needed funds to pay her monthly rent and to maintain the type of home she could not otherwise afford without the father’s assistance.

The father appealed from the denial of his motion for summary judgment. The First Department reversed, holding that under the C.S.S.A., the father, as the custodial parent, could not be directed to pay child support to the mother, the noncustodial parent. Under the C.S.S.A.’s plain language, only the noncustodial parent can be directed to pay child support. D.R.L. §240(1-b)(f)(10) and F.C.A. § 413(1)(f)(10). The C.S.S.A. provides for no other option and vests the court with no discretion to order payment in the other direction.

In Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998), the Court of Appeals unmistakably held that the C.S.S.A. applies to shared custody cases and that “child support in a shared custody case should be calculated as it is in any other case.” Specifically, the First Department noted, the Court of Appeals in Bast instructed that after completing the three-step statutory formula, “the trial court must then order the noncustodial parent to pay.” Bast leaves no other option than to direct payment by the noncustodial parent to the custodial parent.

Here, given the schedule set by Justice Gesmer’s custody decision, there was no question that the father has physical custody of the child for a majority of the time and should be considered the custodial parent for child support purposes. The child will spend 206 overnights with the father compared to 159 with the mother. Thus, the child will be with the father for a majority of the time (56%), and with the mother a minority of the time (44%). The extra 47 days the child spends with the father translates into nearly 30% more than the mother’s time. Put another way, the child is with the father approximately 130% of the time he is with the mother.

The First Department believed Justice Gesmer “improperly focused on the parties’ financial circumstances rather than their custodial status.” In doing so, the lower court had endorsed an approach where the determination of the custodial parent is based not on with whom the child spends the majority of the time, but instead on which parent has the lesser monetary means.

No matter how well-intentioned court may have been, neither the CSSA, nor Bast v. Rossoff, allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal.

The appellate court also criticized Justice Gesmer’s attempt to equalize the custodial time by focusing on how much “waking, non-school time” the child spends with each parent; i.e. identifying the custodial parent by calculating the number of waking hours he or she spends with the child. Noting that this approach was “soundly rejected” in Somerville v. Somerville, 5 A.D.3d 878, 773 N.Y.S.2d 483 (3rd Dept. 2004), the First Department held:

We reach the same result here and reject the counting of waking hours as a method of determining who is the custodial parent. . . . [W]we believe that the number of overnights, not the number of waking hours, is the most practical and workable approach.

Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing. Furthermore, because a child’s activities are subject to constant change, the number of hours spent with each parent becomes a moving target. Outside of school hours, a child may participate in after-school activities, spend time with a child care giver, be enrolled in tutoring, or attend summer camp. During those times, the child may not be with either parent. The child’s activities may vary day to day and will change as the child ages, unnecessarily creating the need to recalculate the parties’ parenting time and possibly modify the custodial parent designation.

Moreover, the use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the custodial parent. An hour-by-hour analysis of custodial time is just not workable and would run afoul of the “greater uniformity [and] predictability” the C.S.S.A. was designed to promote.

The First Department found no support for the mother’s argument that in shared custody cases, a court has the discretion to determine the custodial parent based on what is “just” and “appropriate.” The exercise of judicial discretion in child support awards is narrowly circumscribed, and the CSSA allows for only two methods of deviating from the statutory formula. First, D.R.L. §§240(1-b)(f) and (g) provide that if the noncustodial parent’s child support obligation is found to be “unjust or inappropriate,” after review of ten enumerated factors, the court shall order the noncustodial parent to pay an amount it finds “just and appropriate” (see also F.C.A. §413[1][f], [g]). Second, under D.R.L. §240(1-b)(d), if the basic child support obligation would reduce the noncustodial parent’s annual income below certain poverty or self-support reserve guidelines, the noncustodial parent’s child support obligation can be reduced to as little as $25 a month, or, in an appropriate case, be entirely eliminated (see also F.C.A. §413[1][d]).

Contrary to the mother’s view, these limited exceptions were inapplicable to the situation here. They merely permit a court to reduce or eliminate the child support obligation of a noncustodial parent who may be financially burdened by the presumptive amount of child support. They do not vest the court with discretion to ignore the statutory scheme and direct that a custodial parent pay, rather than receive, child support. A court need not analyze the parties’ financial circumstances because “the question of who is the custodial parent here turns on an evaluation of the number of overnights, and not on economic need.”

In Rubin, Eleanor B. Alter, Maxine R. Shapiro and Matthew Hrutkay, of Kasowitz, Benson, Torres & Friedman LLP, of New York, represented the father. Jason A. Advocate, of Advocate & Lichtenstein, LLP, of New York, represented the mother.

In LeonardRobert J. Lunn, of Trevett Cristo Salzer & Andolina P.C., of Rochester, represented the wife. Maureen A. Pineau, of Rochester, represented the husband. Matthew J. Fero, of Rochester, was Attorney for the Children.